Bill S485-2013

Establishes the crime of operating a vehicle while fatigued

Establishes the crime of operating a vehicle while fatigued; relates to vehicular assault and vehicular manslaughter by including within the definition of such crimes the operation of a vehicle while fatigued where the result of such operation is serious physical injury or death to another person.

Details

Actions

Jan 8, 2014: REFERRED TO TRANSPORTATION

Jan 9, 2013: REFERRED TO TRANSPORTATION

Memo

BILL NUMBER:S485

TITLE OF BILL: An act to amend the vehicle and traffic law and the penal law, in relation to operating a vehicle while fatigued; in relation to vehicular assault and vehicular manslaughter; and providing for the mandatory suspension of a driver's license upon conviction of operating a vehicle while fatigued

PURPOSE: To strengthen provisions of the vehicle and traffic law and penal law that relate to the crimes of vehicular assault and vehicular manslaughter when serious physical injury or death is caused by a person driving a vehicle while impaired because of lack of sleep.

SUMMARY OF PROVISIONS: Vehicle and Traffic Law is amended by adding a new section 1212-a:

* Defines operating a vehicle while fatigued. * Defines what constitutes proof that a person fell asleep while driving. * Defines criteria for rebuttable presumption. * Defines vehicle included in law. * This section shall not apply to emergency personnel engaged in response to catastrophic event which affects public safety; or medical, fire or ambulance personnel responding to certain emergencies or calls for assistance. * Defines class of crime and penalties.

Paragraph b of subdivision 2 of section 510 of the vehicle and traffic law is amended by adding a new subparagraph (xvi) regarding penalties.

Subparagraph 2 of paragraph (a) of subdivision 2 of section 1193 of the V & TL, as amended by chapter 196 of the laws of 1996 is amended and a new subparagraph 3 is added regarding penalties for persons under the age of twenty one.

Section 120.03 of the penal law is amended as amended by chapter 732 of the laws of 2006 is amended to include driving while fatigued as vehicular assault in the second degree.

JUSTIFICATION: Current criminal law provisions are an inadequate deterrent to drivers who knowingly operate a vehicle while fatigued and drowsy. This creates an enhanced risk of serious injury to, or the death of, innocent victims. A.2012 study in the journal Archives of Internal Medicine found there was no difference between driving sleepy or drunk. Both doubled the risk of causing a car accident In addition, the National Highway Traffic safety Administration estimates that 100,000 crashes reported each year are the result of fatigue and sleepiness.

The addition of the rebuttable presumption provision would create a causal link between a driver who causes serious physical injury or death and a presumption that it was his or her drowsiness that was the cause. The accused would be able to rebut such a presumption by

presenting evidence that shows that it was a separate intervening factor or factors that caused the serious injury or death.

LEGISLATIVE HISTORY: This bill has been previously introduced

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: 180 days after it shall become law.

Text

STATE OF NEW YORK
________________________________________________________________________
485
2013-2014 Regular Sessions
IN SENATE
(PREFILED)
January 9, 2013
___________

Introduced by Sen. STAVISKY -- read twice and ordered printed, and when
printed to be committed to the Committee on Transportation
AN ACT to amend the vehicle and traffic law and the penal law, in
relation to operating a vehicle while fatigued; in relation to vehicu-
lar assault and vehicular manslaughter; and providing for the mandato-
ry suspension of a driver's license upon conviction of operating a
vehicle while fatigued
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The vehicle and traffic law is amended by adding a new
section 1212-a to read as follows:
S 1212-A. OPERATING A VEHICLE WHILE FATIGUED. (A) A PERSON IS GUILTY
OF OPERATING A VEHICLE WHILE FATIGUED WHEN HE OR SHE OPERATES ANY VEHI-
CLE WHILE HIS OR HER ABILITY TO DRIVE IS IMPAIRED BY FATIGUE. PROOF OF
FATIGUED OPERATION SHALL INCLUDE, BUT NOT BE LIMITED TO:
(1) EVIDENCE THAT THE DEFENDANT FELL ASLEEP WHILE DRIVING;
(2) EVIDENCE THAT THE DEFENDANT WAS AWARE OR SHOULD REASONABLY HAVE
BEEN EXPECTED TO BE AWARE THAT HE OR SHE HAS BEEN WITHOUT SLEEP FOR
TWENTY-FOUR OR MORE CONSECUTIVE HOURS.
EVIDENCE OF SUCH LACK OF SLEEP AS SET FORTH IN THIS SUBDIVISION SHALL
CREATE A REBUTTABLE PRESUMPTION THAT SUCH PERSON'S ABILITY TO DRIVE WAS
IMPAIRED BY FATIGUE.
(B) FOR THE PURPOSES OF THIS SECTION, THE TERM "VEHICLE" SHALL MEAN A
MOTOR VEHICLE, MOTORCYCLE, VESSEL, PUBLIC VESSEL, SNOWMOBILE, ALL-TER-
RAIN VEHICLE OR ANY OTHER VEHICLE PROPELLED BY ANY POWER OTHER THAN
MUSCULAR POWER.
(C) THIS SECTION SHALL NOT APPLY TO EMERGENCY PERSONNEL ENGAGED IN THE
RESPONSE TO A CATASTROPHIC EVENT WHICH AFFECTS PUBLIC SAFETY; OR
MEDICAL, FIRE OR AMBULANCE PERSONNEL RESPONDING TO CERTAIN EMERGENCIES
OR CALLS FOR ASSISTANCE; OR PERSONS IMPAIRED BY FATIGUE UNDER CIRCUM-

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03118-01-3

S. 485 2

STANCES IN WHICH A REASONABLE PERSON WOULD NOT HAVE ANTICIPATED THE
ONSET OF FATIGUE NOR HAD A REASONABLE OPPORTUNITY TO DISCONTINUE OPERA-
TION OF HIS OR HER VEHICLE.
(D) EVERY PERSON VIOLATING THIS SECTION SHALL BE GUILTY OF A CLASS A
MISDEMEANOR. A FIRST VIOLATION OF THIS SECTION SHALL BE SUBJECT TO A
FINE NOT TO EXCEED FIVE HUNDRED DOLLARS; ANY SUBSEQUENT VIOLATION OF
THIS SECTION SHALL BE SUBJECT TO A FINE NOT TO EXCEED ONE THOUSAND
DOLLARS AND MANDATORY LICENSE SUSPENSION IN ACCORDANCE WITH THE
PROVISIONS OF SECTION FIVE HUNDRED TEN OF THIS CHAPTER.
S 2. Paragraph b of subdivision 2 of section 510 of the vehicle and
traffic law is amended by adding a new subparagraph (xvi) to read as
follows:
(XVI) FOR A PERIOD OF SIX MONTHS WHERE THE HOLDER IS CONVICTED OF A
VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THIS CHAPTER.
S 3. Subparagraph 2 of paragraph (a) of subdivision 2 of section 1193
of the vehicle and traffic law, as amended by chapter 196 of the laws of
1996, is amended and a new subparagraph 3 is added to read as follows:
(2) Persons under the age of twenty-one; driving after having consumed
alcohol. Six months, where the holder has been found to have operated a
motor vehicle after having consumed alcohol in violation of section
eleven hundred ninety-two-a of this article where such person was under
the age of twenty-one at the time of commission of such violation[.];
(3) PERSONS UNDER THE AGE OF TWENTY-ONE; OPERATING A VEHICLE WHILE
FATIGUED. SIX MONTHS, WHERE THE HOLDER HAS BEEN FOUND TO HAVE OPERATED A
VEHICLE WHILE FATIGUED IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A
OF THIS CHAPTER WHERE SUCH PERSON WAS UNDER THE AGE OF TWENTY-ONE AT THE
TIME OF COMMISSION OF SUCH VIOLATION.
S 4. Section 120.03 of the penal law, as amended by chapter 732 of the
laws of 2006, is amended to read as follows:
S 120.03 Vehicular assault in the second degree.
A person is guilty of vehicular assault in the second degree when he
or she causes serious physical injury to another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the vehicle and
traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED
TWELVE-A OF THE VEHICLE AND TRAFFIC LAW or operates a vessel or public
vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two
of section forty-nine-a of the navigation law, and as a result of such
intoxication or impairment by the use of a drug, or by the combined
influence of drugs or of alcohol and any drug or drugs, OR BY FATIGUE,
operates such motor vehicle, vessel or public vessel in a manner that
causes such serious physical injury to such other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of
more than eighteen thousand pounds which contains flammable gas, radio-
active materials or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and traffic law OR
OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF
THE VEHICLE AND TRAFFIC LAW, and such flammable gas, radioactive materi-
als or explosives is the cause of such serious physical injury, and as a
result of such impairment by the use of alcohol, OR BY FATIGUE, operates
such motor vehicle in a manner that causes such serious physical injury
to such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation and historic
preservation law or operates an all terrain vehicle as defined in para-
graph (a) of subdivision one of section twenty-two hundred eighty-one of

S. 485 3

the vehicle and traffic law and in violation of subdivision two, three,
four, or four-a of section eleven hundred ninety-two of the vehicle and
traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED
TWELVE-A OF THE VEHICLE AND TRAFFIC LAW, and as a result of such intoxi-
cation or impairment by the use of a drug, or by the combined influence
of drugs or of alcohol and any drug or drugs, OR BY FATIGUE, operates
such snowmobile or all terrain vehicle in a manner that causes such
serious physical injury to such other person.
If it is established that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all terrain vehicle caused such
serious physical injury while: (A) unlawfully intoxicated or impaired by
the use of alcohol or a drug[,]; OR (B) UNLAWFULLY IMPAIRED BY FATIGUE
then there shall be a rebuttable presumption that, as a result of such
intoxication or impairment by the use of alcohol or a drug, or by the
combined influence of drugs or of alcohol and any drug or drugs, OR BY
FATIGUE, such person operated the motor vehicle, vessel, public vessel,
snowmobile or all terrain vehicle in a manner that caused such serious
physical injury, as required by this section.
Vehicular assault in the second degree is a class E felony.
S 5. The second undesignated paragraph of section 120.04 of the penal
law, as amended by chapter 496 of the laws of 2009, is amended to read
as follows:
If it is established that the person operating such motor vehicle
caused such serious physical injury or injuries while: (A) unlawfully
intoxicated or impaired by the use of alcohol or a drug, or by the
combined influence of drugs or of alcohol and any drug or drugs[,]; OR
(B) UNLAWFULLY IMPAIRED BY FATIGUE then there shall be a rebuttable
presumption that, as a result of such intoxication or impairment by the
use of alcohol or a drug, or by the combined influence of drugs or of
alcohol and any drug or drugs, OR BY FATIGUE, such person operated the
motor vehicle in a manner that caused such serious physical injury or
injuries, as required by this section and section 120.03 of this arti-
cle.
S 6. Section 125.12 of the penal law, as amended by chapter 732 of the
laws of 2006, is amended to read as follows:
S 125.12 Vehicular manslaughter in the second degree.
A person is guilty of vehicular manslaughter in the second degree when
he or she causes the death of another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the vehicle and
traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED
TWELVE-A OF THE VEHICLE AND TRAFFIC LAW or operates a vessel or public
vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two
of section forty-nine-a of the navigation law, and as a result of such
intoxication or impairment by the use of a drug, or by the combined
influence of drugs or of alcohol and any drug or drugs OR FATIGUE, oper-
ates such motor vehicle, vessel or public vessel in a manner that causes
the death of such other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of
more than eighteen thousand pounds which contains flammable gas, radio-
active materials or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and traffic law OR
OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF
THE VEHICLE AND TRAFFIC LAW, and such flammable gas, radioactive materi-
als or explosives is the cause of such death, and as a result of such

S. 485 4

impairment by the use of alcohol, OR BY FATIGUE, operates such motor
vehicle in a manner that causes the death of such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation and historic
preservation law or operates an all terrain vehicle as defined in para-
graph (a) of subdivision one of section twenty-two hundred eighty-one of
the vehicle and traffic law in violation of subdivision two, three,
four, or four-a of section eleven hundred ninety-two of the vehicle and
traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED
TWELVE-A OF THE VEHICLE AND TRAFFIC LAW, and as a result of such intoxi-
cation or impairment by the use of a drug, or by the combined influence
of drugs or of alcohol and any drug or drugs OR FATIGUE, operates such
snowmobile or all terrain vehicle in a manner that causes the death of
such other person.
If it is established that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all terrain vehicle caused such
death while: (A) unlawfully intoxicated or impaired by the use of alco-
hol or a drug[,]; OR (B) UNLAWFULLY IMPAIRED BY FATIGUE then there shall
be a rebuttable presumption that, as a result of such intoxication or
impairment by the use of alcohol or a drug, or by the combined influence
of drugs or of alcohol and any drug or drugs, OR BY FATIGUE, such person
operated the motor vehicle, vessel, public vessel, snowmobile or all
terrain vehicle in a manner that caused such death, as required by this
section.
Vehicular manslaughter in the second degree is a class D felony.
S 7. The second undesignated paragraph of section 125.13 of the penal
law, as amended by chapter 496 of the laws of 2009, is amended to read
as follows:
If it is established that the person operating such motor vehicle
caused such death or deaths while: (A) unlawfully intoxicated or
impaired by the use of alcohol or a drug, or by the combined influence
of drugs or of alcohol and any drug or drugs[,]; OR (B) UNLAWFULLY
IMPAIRED BY FATIGUE then there shall be a rebuttable presumption that,
as a result of such intoxication or impairment by the use of alcohol or
a drug, or by the combined influence of drugs or of alcohol and any drug
or drugs, OR BY FATIGUE such person operated the motor vehicle in a
manner that caused such death or deaths, as required by this section and
section 125.12 of this article.
S 8. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation.
Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech;
or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation
is generally performed Monday through Friday.